By Cecilia Kang
Washington Post Staff Writer
Wednesday, July 14, 2010; A01
An occasional curse word or even Janet Jackson's infamous "wardrobe malfunction" on prime-time TV shouldn't bring down the wrath of the Federal Communications Commission, a federal court ruled Tuesday.
The U.S. Court of Appeals for the 2nd Circuit said the agency's rules on indecency are too vague and violate the First Amendment, undermining the government's primary tool for policing civility over the airwaves.
With its decision, the three-judge panel handed a victory to broadcasters such as Fox, CBS and ABC, which had petitioned the court to challenge the agency's muscled-up approach of imposing steep fines for impromptu expletives and sexual content.
Broadcasters had taken their arguments against the FCC's policy to the Supreme Court, which ruled in favor of the agency April 29. It said the FCC followed administrative procedure, but it did not address whether the rules were constitutional -- an issue it sent to the appeals court.
On Tuesday, the appeals judges called the FCC's policy, in place since 2004, "unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here." The vagueness left broadcasters uncertain about what they could air, which impinged on their freedom of speech, the judges said.
The decision highlights the FCC's struggle to respond to changing technologies on a host of fronts. Earlier this year, another court ruled that the agency lacks the authority to oversee consumers' access to Internet services. The ruling Tuesday questioned how the FCC can single out broadcast TV while most American families subscribe to cable or satellite TV, watch Internet video on cellphones, and play lifelike video games with few standards of decency.
"The past thirty years has seen an explosion of media sources, and broadcast has become only one voice in the chorus," the judges said in their opinion.
FCC Chairman Julius Genachowski declined to comment on whether the agency would appeal, saying he was reviewing the decision. The Parents Television Council called the decision a "slap in the face," and Concerned Women for America, an advocacy group for indecency rules, urged the agency to appeal, lest broadcast television be open to the sexually explicit content and language of cable programs such as "The Sopranos" and "True Blood."
Specifically, the judges said the FCC isn't clear enough on what's permissible and what's not. In one instance, the FCC concluded that uttering a term to describe bull excrement in an episode of the police drama "NYPD Blue" was offensive. But apparently the expression for kissing another's derriere is permissible, the court noted.
The judges said the FCC hasn't given clear guidelines on its two main tests for indecency: whether material describes or depicts sexual or excretory organs or activities, and whether a broadcast is "patently offensive as measured by contemporary community standards."
"The English language is rife with creative ways of depicting sexual or excretory organs or activities," the judges wrote, "and even if the FCC were able to provide a complete list of all such expressions, new offensive and indecent words are invented every day."
At stake for broadcasters were fines as high as $325,000 per violation, which made stations skittish about what to air. In recent years, some stations refrained from airing the World War II film "Saving Private Ryan" and a documentary on the attacks of Sept. 11, 2001, during prime-time hours because both contained profanity.
"No one knows where the line is, and broadcasters are afraid to get near it," said Paul Gallant, a communications and media analyst with Concept Capital.
The court petition stems from the FCC's change in indecency policies in 2004 to include fleeting expletives and other impromptu indecent material in TV and radio broadcasts.
That decision, during the Bush administration and the tenure of then-FCC Chairman Kevin J. Martin, stemmed from complaints after rock star Bono described his Golden Globe award -- during live prime-time hours on NBC -- as "[expletive] brilliant." The FCC declared that a single, nonliteral use of an expletive, or a "fleeting expletive," could be "actionably indecent."
It is unclear, however, whether the FCC will pursue an appeal. Genachowski has focused on media safety for children on the Internet, and the agency has a massive backlog of indecency complaints, including from an episode of Fox's "Family Guy."
But broadcasters said the effect of the court decision wouldn't change content on television.
"It's legally permissible for stations to air uncut R-rated movies after 10 p.m. -- or to have Letterman and Leno dropping F-bombs," said Dennis Wharton, spokesman for the National Association of Broadcasters. "But you never see or hear that material from broadcasters because of the relationships and expectations we've built with our audiences over decades."